Lord Ordinary refuses challenge by Pakistani woman to refusal of citizenship application

About this case:

• Citation:
  [2023] CSOH 38
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner Azia Ameen, who had been granted indefinite leave to remain in 2019, argued that the decision of the Secretary of State for the Home Department was not consistent with Home Office policy and no adequate reasons had been given for that decision. The Home Secretary took the position that the petitioner had failed to establish that her period of overstaying was not her fault and that she failed to take reasonable steps to extend her leave timeously.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Forrest, advocate, appeared for the petitioner and Middleton, advocate, for the Advocate General on behalf of the Home Secretary.

Reasonable reader

The petitioner was initially granted leave to remain in the UK for the purpose of study from March 2011 to February 2013. However, in May 2011 the Home Office was notified by her college that she had not commenced her studies and on that basis her leave was curtailed in March 2012. Notification of that curtailment was sent to the petitioner’s college but not directly to her. She maintained that the college se wished to attend closed down and she spent considerable time and money unsuccessfully looking for an alternative institution to continue her studies.

By the time her original leave period would have expired in February 2013, the petitioner was living with a man who promised to look after her. The man left her in February 2014, while she was pregnant, and she realised she could not return to Pakistan due to attitudes towards unmarried mothers there. The petitioner was later granted refugee status in 2014.

On 26 February 2021 the Home Secretary rejected her application for naturalisation on the basis that she was not satisfied that the petitioner was of good character, because she had not complied with UK immigration laws in the 10-year period prior to the date of her application. A request for reconsideration of that decision was rejected on 13 August 2022.

Counsel for the petitioner submitted that her personal circumstances during her period of overstaying could not be ignored and might amount to a reason why she was not at fault within the meaning of the relevant policy. A reasonable reader of the policy wording might well have concluded as a result of such consideration that the petitioner had not been at fault in overstaying, with the consequence that the Secretary of State’s discretion to overlook overstaying which was not the petitioner’s fault had not been exercised properly.

Difficult to see

In his decision, Lord Sandison began: “Consideration of the ordinary and natural meaning of the concept of ‘fault’ in the context of the relevant policy document results in the conclusion that a period of presence without leave in the United Kingdom will be the fault of an applicant if it is the result of behaviour on his or her part which falls short of the standards of probity and reasonableness to be expected of an ordinary person in all the circumstances.”

Addressing whether the Secretary was able to form a view that the petitioner was at fault, he said: “The Secretary of State restricted the period during which she regarded the petitioner as having been present without leave to that between 6 February 2013, by which point her leave to remain here would in any event have expired, and the date of her being granted asylum in August 2014. In respect of that period, the Secretary of State considered that the petitioner had deliberately remained in the United Kingdom despite being aware that she did not have leave to do so and without taking any steps to regularise her situation. Counsel for the petitioner did not dispute that that was an accurate understanding of the facts.”

On whether adequate reasons had been provided, he continued: “The relevant letter notes that the application was refused because the petitioner failed to meet the statutory good character requirement as a result of having been in the United Kingdom in breach of immigration laws in the immediately preceding 10 years and having failed to take reasonable steps to ensure she remained compliant with those laws on the expiry of her leave. It added that it appeared that before the expiry of her leave she had decided to remain but did not apply for further leave to remain beyond that date. It is difficult to see how the reasons provided could have been more clear about the basis of the decision.”

Lord Sandison concluded: “The decision letter required to deal with the question of whether the petitioner’s overstaying was her fault in terms of the policy document, which it adequately did by referring to her deliberate decision to remain in the United Kingdom after the expiry of her leave to do so. It did not require to explain why the circumstances surrounding her decision to remain were not deemed sufficiently weighty to treat her case as falling outwith the general ambit of the policy, not least because no request for any such exceptional treatment was ever made to the Secretary of State and nothing in those circumstances cried out for any such treatment.”

The petition was accordingly dismissed.